HBA-GUM, KMH H.B. 1663 76(R)BILL ANALYSIS


Office of House Bill AnalysisH.B. 1663
By: Naishtat
Judicial Affairs
8/2/1999
Enrolled



BACKGROUND AND PURPOSE 

Provisions relating to guardianships were separated from provisions
relating to the administration of an estate in 1993, by the 73rd
Legislature. Prior to the 76th Texas Legislature, the procedure for
commencing and terminating a guardianship was similar to the procedure of a
trial.  For example, an interested party, including the proposed ward,
could contest an application for guardianship either in a trial to the
bench or to a jury and the rules of evidence used in a trial under this
code were the rules of evidence which apply to a trial in a district court.

H.B. 1663 provides rules of procedure specific to the restoration of a
ward's capacity or the modification of a guardianship.  This bill also
subjects a court investigator to the duties required by this code.
Additionally, this bill authorizes a ward to retain an attorney and the
attorney to be compensated from the ward's estate, if appropriate. 

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that this bill does
not expressly delegate any additional rulemaking authority to a state
officer, department, agency, or institution. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Section 23.102, Government Code, to provide that a trial
court should give precedence in setting matters before the court to matters
involving the complete restoration of a ward's capacity or modification of
a ward's guardianship. 

SECTION 2.  Amends Sections 642(a) and (b), Probate Code, to clarify the
term guardianship proceeding for the purposes of this section to include a
proceeding for complete restoration of a ward's capacity or modification of
a ward's guardianship.  Prohibits a person who has an interest that is
adverse to a proposed ward or incapacitated person from contesting an
application for complete restoration of a ward's capacity or modification
of a ward's guardianship. 

SECTION 3.  Amends Section 648A(b), Probate Code, to subject a court
investigator to the duties required by this code. 

SECTION 4.  Amends Section 682, Probate Code, to delete language requiring
an application for a guardianship to state the nature and description of
any guardianship of any kind existing for the proposed ward in this state.
Deletes language requiring the application to state the requested term of
the guardianship.   Redesignates existing Subsections (10)-(16) as
Subsections (9)-(15). 

SECTION 5.  Amends Section 694A, Probate Code, as follows:

Sec.  694A.  New Title: COMPLETE RESTORATION OF WARD'S CAPACITY OR
MODIFICATION OF GUARDIANSHIP.  Authorizes a person to file a written
application, rather than a petition, with the court for an order under this
section.  Modifies the language of a finding under this section to state
that the court finds that the ward is no longer an incapacitated person,
rather than no longer needing a guardianship.  Modifies the language of a
finding under this section to state more specifically the capacity the ward
lacks. Authorizes only a ward to request an order under this section by an
informal letter to the  court.  Requires the court to appoint a court
investigator or guardian ad litem to file an application on the ward's
behalf, upon receipt of an informal letter under this section. Authorizes a
guardian ad litem appointed under this section to also be appointed as
attorney ad litem under Section 694C of this code.  Requires citation to be
served on the ward's guardian and on the ward if the ward is not the
applicant, when an application is filed under this section. Prohibits a
person from reapplying for complete restoration of a ward's capacity or
modification of a ward's guardianship before the first anniversary of the
date of the hearing on the last preceding application, except as otherwise
provided by the court on a showing of good cause by the applicant. Makes
conforming and nonsubstantive changes. 

SECTION 6.  Amends Subpart A, Part 3, Chapter XIII, Probate Code, by adding
Sections 694B through 694K, as follows: 

Sec.  694B.  CONTENTS OF APPLICATION.   Provides that an application filed
under Section 694A must be sworn to by the applicant.  Sets forth the
prescribed content of an application under Section 694A. 

Sec.  694C.  APPOINTMENT OF ATTORNEY AD LITEM.  Requires the court to
appoint an attorney ad litem to represent a ward in a proceeding for the
complete restoration of the ward's capacity or for the modification of the
ward's guardianship.  Requires an attorney ad litem appointed under this
section to represent the ward only for purposes of the restoration or
modification proceeding, unless otherwise provided by the court. 

Sec.  694D.  HEARING.  Requires the court to consider at a hearing under
this subpart only evidence regarding the ward's mental or physical capacity
at the time of the hearing that is relevant to the restoration of capacity
or modification of the guardianship, as appropriate. Places the burden of
proof on the party who filed the application. 

Sec.  694E.  FINDINGS REQUIRED.  Provides that a court must find by a
preponderance of the evidence that the ward is no longer a partially or
fully incapacitated, before ordering the settlement and closing of the
guardianship under an application filed under Section 694A. Provides that a
court must find by a preponderance of the evidence that the current nature
and degree of the ward's incapacity warrants modification of the
guardianship, before ordering the powers of the guardian, or the rights of
the ward, to be modified. 

Sec.  694F.  EXAMINATIONS AND REPORTS RELATING TO COMPLETE RESTORATION OF
WARD'S CAPACITY OR MODIFICATION OF GUARDIANSHIP. Prohibits a court from
granting an order completely restoring a ward's capacity or modifying a
ward's guardianship under an application filed under Section 694A, unless
in addition to other requirements prescribed by this code, the applicant
presents to the court a timely written letter or certificate from a
physician licensed in this state which is dated as prescribed.  Sets forth
the contents of such a letter or certificate.  Authorizes the court to
appoint the necessary physicians to examine the ward in the same manner and
to the same extent as a ward is examined by a physician under Section 687
(Examinations and Reports) of this code, if deemed necessary by the court. 

Sec.  694G.  ORDER OF COMPLETE RESTORATION OF WARD'S CAPACITY. Provides
that an order restoring the ward's capacity must contain findings of fact
with prescribed specificity, require the guardian to immediately and
appropriately settle and close the guardianship, and require the clerk to
subsequently revoke letters of guardianship. 

Sec.  694H.  MODIFICATION OF GUARDIANSHIP.  Provides that an order
modifying the guardianship must contain findings of fact with prescribed
specificity; set forth specific powers, limitations, or duties of the
guardian, including the areas of protection and assistance to be provided
to the ward; any limitation of the ward's rights; and require the clerk to
modify the letters of guardianship to conform with the order. 

Sec.  694I.  DISMISSAL OF APPLICATION.  Requires the court to dismiss an
application if the court finds that no modification is warranted or the
capacity of the ward has not been  restored.  Requires the court upon
dismissal to enter an order which contains findings of fact with prescribed
specificity. 

Sec.  694J.  CONTENTS OF ORDER.  Sets forth the required contents of an
order entered with respect to a request made under Section 694A to
completely restore a ward's capacity or modify the guardianship.  Prohibits
the court  in an order described by this section from granting to or
requiring from one guardian powers or duties which have been granted to or
required from another guardian. 

Sec.  694K.  ATTORNEY RETAINED ON WARD'S BEHALF.  Authorizes a ward to
retain an attorney for a proceeding involving the complete restoration of
the ward's capacity or modification of the ward's guardianship.  Authorizes
the court to order that compensation for services provided by an attorney
retained under this section be paid from funds in the ward's estate only if
the court finds that the attorney had a good-faith belief that the ward had
the capacity necessary to retain the attorney's services. 

SECTION 7.  Provides that this Act applies to applications for the
appointment of a guardian, restoration of a ward's capacity, or
modification of a guardianship, in which a final determination has not been
made by the court.  Provides that an application filed before the effective
date of this Act must be conformed in accordance with the changes in the
law made by this Act. 

SECTION 8.  Effective date: September 1, 1999.

SECTION 9.  Emergency clause.